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Article 2/2025

What are some of the important principles governing a charge of intoxication (i e being under the influence of alcohol) as opposed to having tested positive for alcohol (as dealt with in article 1/2024)?

To what extent is there currently a similar jurisdiction so applicable to answering the above question in respect of the symptoms of cannabis and its effects?

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  • The LAC, in Tanker Services (Pty) Limited v Magudulela [1997] 12 BLLR 1552 (LAC), stated that:
    •  ‘The difficulty with proving the charge brought against the respondent is that intoxication is a matter of degree. The respondent would only be “under the influence of alcohol” if he was no longer able to perform the tasks entrusted to him, and particularly the driving of a heavy vehicle, with the skill expected of a sober person.Whether an employee is, by reason of the consumption of intoxicating liquor, unable to perform a task entrusted to him by an employer must depend on the nature of the task.’
  • In cases where alcohol intoxication has been suspected, a breathalyser is not always conclusive on its own to justify dismissal (Palaborwa Mining Company Ltd v Cheetham and Others [2007] ZALAC 11; (2008) 29 ILJ 306 (LAC); [2008] 6 BLLR 553 (LAC); Mondi Paper Co v Dlamini [1996] 9 BLLR 1109 (LAC)).
  • Instead, it could be coupled with other evidence, such as the employee having slurred speech, impaired coordination, loudness and all the other known symptoms of alcohol intoxication (National Union of Metal Workers of South Africa obo Cloete v Trentyre (Pty) Ltd and Others [2008] ZALAC 18; [2016] JOL 35706 (LAC) (Trentyre); XStrata Coal South Africa v Commission for Conciliation Mediation And Arbitration and Others [2014] ZALCJHB 14).
  • A similar jurisprudence on the known symptoms of cannabis and its effects, compared to the duties associated with the nature of the job, should be allowed to develop. All this would depend – in addition to the test results (where available) – on the facts of each case and eyewitness accounts. This was not to say that test results, on their own, are always insufficient, but that the nature of the job determined the amount of evidence required to justify dismissal (Jet Demolition (Pty) Ltd v AMCU obo Sehoshe and Others [2022] ZALCJHB 55, at paragraph [52]).
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?